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Page 6, 7th May 1932

7th May 1932
Page 6
Page 6, 7th May 1932 — CATHOLIC AUTHORITY AND ENGLISH LAW
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CATHOLIC AUTHORITY AND ENGLISH LAW

BY FRANCIS H. COWPER.

In general it is true to say that the law of England now neither recognizes nor interferes with any ecclesiastical authority outside the Established Church, That is to say, while it tolerates it also ignores religious customs upon which it cannot adjudicate. One notable exception, however, is worthy of remark. Under a statute of Elizabeth re-enacted by the Religious Disabilities Act, 1846, it is unlawful "to import, bring in or put in execution within the realm" any Papal Bull. But as the pains and penalties imposed by the earlier Act have been repealed, this enactment has now but little practical effect. The last time it was invoked was in the case of Mathew v. The Times Publishing Co., Ltd., in 1913, when Mr. Justice Darling held that it was not unlawful to publish a Papal Bull in a newspaper simply for the information of the public. This action arose out of the Bull of Excommunication promulgated against Father Arnold Mathew, who, having apostatized and joined the "Old Catholics," had been " elected " Archbishop of London.

The general rule already stated was clearly exemplified in the case of Petre v. Ferrers in 1891, when a dispute arose as to the possession of an altar-stone at Coptfold Hall in Essex. While the Petre family were in occupation of the house, Mass was celebrated in the private chapel by licence of Cardinal Wiseman, who provided an altar-stone for the purpose. After the house was let to Mr. Ferrers, the licence was continued; but at the end of the tenancy it was withdrawn by Cardinal Manning, then head of the Catholic Church in England. The stone was consequently removed by him with the consent of Mr. Ferrers and the plaintiff brought this action to recover possession of it. The point at issue and the view taken by the Court are clearly stated in the judgment of Mr. Justice Romer : "The defendants . . . say that . . . according to Roman Catholic ecclesiastical custom, the altar-stone being consecrated can only be used in the chapel while it is licensed for Roman Catholic worship, and that in this case the licence for the chapel having been withdrawn, the altar-stone ought to be returned to the defendant, Cardinal Manning, although it is not suggested that Cardinal Manning was the ecclesiastic who originally had possession of the altar-stone. With regard to this contention on behalf of the defendants I can only say that according to the only law which this Court can recognize Cardinal Manning has no title whatever to the altar-stone."

It is in connection with marriage that difficulties have most often arisen as to the differences between the law of the Church and the law of the land. The Courts, of course, take no cognisance of the marriage laws of the Catholic Church or of dispensations or decrees issued by its authority except in so far as they form part of the marriage laws of foreign independent states. Thus in the Sussex Peerage Case in 1844 evidence as to the matrimonial law of the Catholic Church, as being the law of the Papal States, was received for the purpose of deciding on the validity of a marriage celebrated in Rome.

In Sottomayer v. de Barros, in 1877, the Court of Appeal held invalid a marriage celebrated in England between Portuguese subjects domiciled in Portugal on the ground that as first cousins they were by the law of their country disabled from contracting matrimony, unless a Papal dispensation had first been obtained, and this had not been done.

Again, the conclusion apparently to be drawn from the case of Connelly v. Connelly in 1851 would seem to be that the Courts will not recognize a Papal decree affecting married rights unless the parties were domiciled in a country whose law recognized the force of such decree. This was the famous case in which the foundress of the Holy Child nuns was one of the parties, and her husband—from whom she had been separated in order that they might both embrace the religious state—was the other. They had been married in 1831, being then members of the Protestant Episcopal Church and American subjects domiciled in Pennsylvania. During the years 1835-36 they visited Rome and embraced the Catholic faith, subsequently returning to America. In 1843 they returned to Rome where, having petitioned for and obtained the licence of the Pope, they separated and lived apart, the wife entering a religious house as a nun and the husband taking Holy Orders. Subsequently they each became resident in England. In 1848, however, the husband renounced the Catholic faith and resorted to the Courts to compel the wife to resume cohabitation with him. In this he was not successful and the case ended inconclusively after it had come before the Judicial Committee of the Privy Council. A direction, however, had been given that the wife was to be allowed to plead the law of Pennsylvania as applicable to the circumstances in the case.

The case of In re Alison in 1874 turned on the law of Persia, which recognized a Christian marriage only if it were valid according to the religious denomination of the parties. A girl who was an Armenian Christian had been the mistress of the British Minister at Teheran. At the time of his death she was pregnant by him and apparently to save scandal the British Vice-Consul undertook to marry her. Her condition, however, made it unlawful according to the practice of the Armenian Church for one of her own priests to perform the ceremony. Therefore, by representing herself to be a Catholic she secured the services of a Catholic priest. Eventually, when the matter came before Vice-Chancellor Wickens, he held the marriage void as being invalid according to the woman's religion and therefore under the law of Persia.

Though there were formerly grounds for thinking that under the Indian statutes British subjects of European origin in India might claim to be governed by the matrimonial law of their own denominations, the contrary was held in the case of Peal v. Peal in 1931. The question arose out of a marriage within the degrees of kindred prohibited both by the law of the Catholic Church and the law of England. The parties who were both Catholics had obtained a Papal dispensation, but Lord Merrivale granted a decree of nullity, holding that the marriage was not validated by the dispensation.

From these decisions it is evident that the law of the Catholic Church as such is not permitted by the Courts to modify the law of England when the principles of the two systems conflict.

TEIE CONVERTS' AID Socury.—The centenary of Cardinal Vaughan, founder of the Converts' Aid Society, is to be celebrated by the Society on July 5 next, when His Eminence the Cardinal Archbishop will preach at a Pontifical High Mass to be sung at Westminster Cathedral.